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Government of Zimbabwe undermining the rule of law, violating treaty - SADC Tribunal
Zimbabwe Human Rights NGO Forum
January 12, 2011

The Zimbabwe Human Rights NGO Forum (the Forum) welcomes the judgment handed down by the Southern African Development Community (SADC) Tribunal on 9 December 2010 in the case of Gondo and 8 others vs the Government of Zimbabwe Case No. SADC (T) 05/2008. The SADC Tribunal ruled that the Government of Zimbabwe violated Articles 4 (c) and 6 (1) of the SADC Treaty by failing to pay compensation to the nine (9) Applicants who are all victims of organized violence and torture (OVT).

The Forum brought the case before the Tribunal in 2008 on behalf of nine (9) victims of OVT. All the victims were represented by the Forum and successfully claimed compensation in the High Court of Zimbabwe but the government of Zimbabwe refused and/or neglected to pay compensation. In the SADC Tribunal case the Forum contended that by failing to comply with the orders of the High Court, the Government of Zimbabwe was in breach of its obligations under the SADC Treaty and in particular Articles 4 (c) and 6(1) of the Treaty. The Forum further argued that Section 5(2) of the State Liabilities Act was in breach of the Treaty in so far as it precludes government property from forming part of the subject matter for execution, attachment or process to satisfy a judgment debt.

The Government of Zimbabwe had initially raised technical objections to the Application citing procedural irregularities. The matter went for initial hearing on 22 April 2009 and the Tribunal disposed of the procedural issues raised by the Government of Zimbabwe allowing the Forum to amend the Application before the hearing on the merits.

The Tribunal heard the Forum's arguments on the merits on June 1st, 2010. The Government of Zimbabwe did not respond to the application on its merits and in December 2010, the Tribunal handed down its judgment. The Tribunal ruled as follows;

• That the Government of Zimbabwe is in breach of Articles 4 (c) and 6 (1) of the Treaty in that it has acted in contravention of various fundamental human rights, namely the right to an effective remedy, the right to have access to an independent and impartial court or tribunal and the right to a fair hearing; and
• That Section 5 (2) of the State Liabilities Act is not only in contravention of the Treaty but also violates Article 3 (2) of the African Charter on Human and Peoples' Rights which provides that "Every individual is entitled to equal protection at law".

The Forum applauds the Tribunal for handing down a progressive decision which acknowledges the need for an urgent reform of repressive pieces of legislation. The decision is significant as it provokes debate on the implications of Section 5(2) of the State Liabilities Act on fundamental human rights such as the right to equality before the law and the rights to an effective remedy. It highlights the need to assess and reform various other pieces of legislation, apart from the overtly anti-democratic and repressive ones like POSA and AIPPA, to ensure full protection of human rights.

The ruling also confirms what the Forum and other Zimbabwean civil society orgnisations have been saying over the years - that one of the country's main challenges is the flagrant disregard of court orders by the state and the absence of the rule of law. The Forum implores Government to respect the rule of law and to honor its obligations under international law in order to ensure the protection of its citizens' right to an effective remedy and equality before the law.

The Tribunal further ordered an adjustment of the awards made to the victims by the High Court and that this shall be done under the supervision of the Tribunal's Registrar. An award of costs was also made against the Government in favour of the Forum. This is a development worth noting as this award is made only in exceptional circumstances. This decision acknowledges the Forum's contention that the Government of Zimbabwe persistently flouts orders granted by its own High Court. It was therefore in the interest of justice that a Government that relentlessly denies victims compensation to which they are entitled be so ordered to compensate and meet costs. The punitive aspect of the decision is very progressive and most welcome.

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